19 research outputs found
How far will the courts go in ensuring the right to a basic education?
Na abstract available.am201
Proposals for the review of the minimum age of criminal responsibility
The minimum age of criminal capacity in South Africa used to be seven years of age, one of the lowest in the world. The Child Justice Act raised that age from seven to 10 years, and retained the rebuttable presumption of criminal incapacity for those children aged 10 years or older but under the age of 14. The Act also provided for a review of the minimum age, with a view to raising it, within five years of the Act's commencement. This article explores the current international debates about setting a minimum age of criminal responsibility, to garner ideas for the upcoming review. The relevant provisions of the Child Justice Act and their practical implementation are interrogated. The conclusion is that the current provisions fall short of international standards in a number of ways, and that children's rights are at risk in the current system. The setting of a new, single minimum age of criminal responsibility is proposed, together with the abolition of the doli incapax presumption which will obviate the need for the assessment of criminal capacity. The author prefers 14 as the new minimum age, but considers 12 the more likely age to be accepted by the legislature.http://www.jutalaw.co.za/catalogue/itemdisplay.jsp?item_id=3599am201
The automatic review of child offenders’ sentences
This case note considers the automatic review of child offenders’ cases. Adult offenders’ cases go on
‘review in the ordinary course’ in limited circumstances, but section 85 of the Child Justice Act aims to
provide automatic review in a wider range of cases. The wording of section 85 and how it should be read
with the Criminal Procedure Act has caused interpretational difficulties. Two cases have provided
answers to certain questions: Do all cases regarding children under 16 years go on review? Do all cases
regarding custodial sentences (that are not suspended) go on review, regardless of the experience of the
magistrate, whether it was a regional court that issued the sentence, the length of the sentence and even if
the child was legally represented? The courts have answered these in the affirmative. In reaching these
conclusions, the courts have interpreted the law within the context of the Child Justice Act as a whole, and
within the provisions of section 28 of the Constitution.http://www.issafrica.org/sacq.phpam201
Rol van die howe om die reg op basiese onderwys in 'n demokratiese Suid-Afrika te verwesenlik : 'n kritiese ontleding van onlangse onderwysregspraak
Hierdie artikel ontleed onlangse regspraak aangaande die reg op basiese onderwys. Die "vier A-skema", wat deur 'n voormalige spesiale rapporteur op onderwys van die Verenigde Nasies voorgestel is en deur die Komitee op Sosiale-, Ekonomiese- en Kulturele Regte in sy Algemene Kommentaar 13 ondersteun is, vorm die raamwerk vir die ontleding. Die vier A-skema omvat beskikbaarheid (availability), toeganklikheid (accessibility), aanvaarbaarheid (acceptability) en aanpasbaarheid (adaptability). 'n Kritiese ontleding van die regspraak dui aan dat daar probleme in die lewering van basiese onderwys in Suid-Afrika bestaan met betrekking tot elkeen van die vier verwante elemente. Sommige van die hindernisse het betrekking op die versuim om noodsaaklike vereistes soos infrastruktuur, skryfbehoeftes en vervoer te voorsien. Ander uitdagings hou verband met geskille rakende die magte van skoolbeheerliggame en skole teenoor die magte van provinsiale departementshoofde, lede van provinsiale uitvoerende komitees en, ten opsigte van nasionale beleid, die nasionale Minister van Basiese Onderwys. Die artikel wys dat litigasie 'n belangrike rol speel om die reg op basiese onderwys te verwesenlik, geskille te besleg en die toewysing van dienste en middele aan leerders te verseker. Die slotsom is dat die soms noodsaaklik en gepas is om die geregtelike roete wat binne 'n grondwetlike demokrasie beskikbaar is, te volg om die reg op basiese onderwys te verwesenlik.http://www.dejure.up.ac.za/am2014ai201
S v Williams : a springboard for further debate about corporal punishment
In an early judgment of the Constitutional Court, S v Williams, Justice Langa
found that judicial whippings were unconstitutional because they violated
young offenders’ rights to dignity and humane treatment. Former Chief
Justice Langa was also a member of the unanimous court that found the law
prohibiting corporal punishment in schools to be a reasonable and justifiable
infringement of their parents’ right to religious freedom. However, s 12 of the
South African Constitution guarantees everyone the right to be protected
from all forms of violence, either from public or private sources. This
contribution considers how the court might deal with a challenge to the
constitutionality of the common-law defence of reasonable chastisement,
which permits corporal punishment of children by their parents in their own
homes.http://www.journals.co.za/ej/ejour_ju_jur.htmlam201
Leveraging funds for school infrastructure : the South African 'mud schools' case study
In 2013 there are still thousands of children in South Africa attending dilapidated mud schools, schools
lacking sanitation, and schools without electricity. The situation took a positive turn in 2009 when the
government was taken to court about the severe infrastructure backlogs in the Eastern Cape province.
The case settled out of court, and resulted in a memorandum of agreement which pledged R 8.2 billion
over three years. However, the allocation of these and other funds has not immediately translated into
tangible results on a broad scale. This is because large infrastructure projects require management
capacity that is lacking in Department of Education in South Africa. This paper demonstrates the
justiciability of the right to education, and shows that litigation, implementation monitoring and
budgetary analysis may be new tools to lever funds for education at the country level, and to hold
government accountable for efficient spending. The significance of this to the post-2015 development
context is that developing countries must find new methods for ensuring the provision and expenditure
of funds from existing budgets within their own countries. In order to achieve this education activists
must forge new alliances with partners who have knowledge in budgeting, budgetary analysis and
where necessary, litigation.http://www.elsevier.com/locate/ijedudevhb201
The impact of children's rights on criminal justice
South Africa’s criminal justice system has traditionally provided
protection for the rights of three categories of persons, namely
perpetrators, victims and witnesses – both adults and children. In
recent years, however, there has been increasing jurisprudential
recognition of a fourth category of affected persons whose rights
and interests need to be independently protected. This category is
the children of perpetrators. There is an
emerging judicial trend towards considering children’s rights in all
instances where a court exercises a discretion that will ultimately
curtail the right to parental care. It is this trend that the subsequent
case descriptions seek to highlight.http://www.jutalaw.co.za/catalogue/itemdisplay.jsp?item_id=3599nf201
Victims’ mitigating views in sentencing decisions : a comparative analysis
This article explores the arguments for and against victims‟ mitigating opinions on
sentence. It describes a recent South African appeal case, compares it with a similar New
Zealand appeal court judgment, and then investigates the legal position in England and Wales. It
appears that, as a general rule, victims‟ recommendations as to penalty must be avoided.
However, unlike in South Africa and New Zealand, the jurisprudence in England and Wales has
developed exceptions in this regard when certain categories of victims request a more lenient
sentence. Several case studies from England and Wales reveal that, through considering the
harms and needs of victims and ameliorating the sentences accordingly, a restorative justice
approach is blended with a just deserts requirement for the protection of lower limits in
sentencing. This ensures that the principles of proportionality, certainty and consistency are still
adhered to. It is concluded that, had the South African court taken proper cognisance of these
comparative legal developments, it would, at very least, have created a better precedent by
providing guidelines to inform the complex, but important, process of considering victims
mitigating opinions in the sentencing process.http://ojls.oxfordjournals.org2017-02-28hb201
Childhood sexuality in Africa : a child rights perspective
It is an undeniable fact that children in Africa face many
challenges in their sexual health and development trajectories. One
of the challenges that children face is ideological, that is, the social
construction of childhood sexuality and the effects of that construction
on law and policy and on what information and services children may
access regarding sex and sexuality. Adults tend to represent children as
sexually innocent and incompetent, and their actions toward children
focus on preserving this sexual innocence and averting sexual risks. The article discusses how this ideological positioning of children shapes
sexuality education, and the criminalisation of sexual conduct between
consenting adolescents. Legal instruments and related interpretive
instruments such as court judgments and the General Comments and
Recommendations of treaty-monitoring bodies play an important role
as they construct meanings of childhood sexuality that align with or
contradict dominant representations of childhood as sexual innocence
which has effects for children’s sexual rights. The article analyses how
General Comments of the Committee on the Rights of the Child and the
African Committee of Experts have represented childhood sexuality. It
argues for the transformation of views about children toward perceiving
children as having sexual agency to the extent of their evolving
capacities, as a prerequisite to addressing challenges that children face
in Africa relating to sexuality. It recommends that the African Committee
of Experts should, in its interpretation of the African Children’s Charter,
construct childhood sexuality positively to represent children as sexual
agents rather than positioning them as sexually innocent which also
implies viewing any sexual activity of the child as inherently harmful or
as a mark of deviance or corruption.https://www.ahrlj.up.ac.zapm2021Centre for Human Right
The development of a fledgling child rights jurisprudence in Eastern and Southern Africa based on international and regional instruments
This article charts the development of a child law jurisprudence that is emerging in Eastern and Southern Africa. The article records how judgments are beginning to make reference to the United Nations Convention on the Rights of the Child and the African Charter on the Rights and Welfare of the Child, and even to less prominent instruments such as the Hague Convention on the Protection of Children and Co-operation in Respect of Inter-Country Adoption (1993) and the Hague Convention on Civil Aspects of International Child Abduction. Attention is paid to certain textual differences between the UN Convention and the African Children's Charter, and the extent to which these discrepancies have played a role in the development of a child law jurisprudence that might be described as uniquely African. The article considers judgments in the region that have expressly dealt with the 'best interests' principle. Examples from Botswana, South Africa and Kenya are described. The second area discussed is the imprisonment of children's primary care givers, in relation to which article 30 of the African Children's Charter, dealing with the children of imprisoned mothers, is highlighted. Other examples arise in relation to differences in the wording of the UN Convention and the African Children's Charter regarding inter-country adoption, which is the third area of case law discussed. High-profile cases relating to adoption applications brought by Madonna before the Malawian courts are amongst those examined. The article concludes that there is evidence of the beginnings of a specifically African jurisprudence in child law. It is noted, however, that more can be done to promote children's legal rights in the region through the ratification by more African countries of the Hague Conventions, and also through courts in the Eastern and Southern African region taking note of each other's jurisprudence